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Hungarian Yearbook of International Law and European Law

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Issue 1, 2019 Expand all abstracts
Editorial

Legal, Ethical and Economical Impacts of Intergenerational Equity (Editorial Comments)

Foreword to Vol. 7 (2019) of the Hungarian Yearbook of International Law and European Law

Authors Marcel Szabó
Author's information

Marcel Szabó
Editor-in-chief; professor of law, Pázmány Péter Catholic University, Budapest; justice, Constitutional Court of Hungary.
Article

An Important Planning Instrument: Strategic Environmental Assessment (EU Directive 2001/42).

Keywords environmental impact assessment, Directive 2001/42, strategic planning, assessment of plans, environmental report
Authors Ludwig Krämer
AbstractAuthor's information

    Directive 2001/42 requires the elaboration of an environmental impact assessment, before certain national, regional or local plans or programs related to the environment are adopted. The paper presents the content of the Directive and summarizes the case-law of the CJEU on the Directive. Furthermore, it raises a number of legal questions hitherto left undiscussed by the European courts.


Ludwig Krämer
Derecho y Medio Ambiente S.L., Madrid
Article

Sustainable Developments in Foreign Investment Law and Policy

Related to Renewable Energy and Climate Change Mitigation and Adaptation

Keywords sustainable development, climate change mitigation, Paris Agreement, renewable energy law, ICSID
Authors Marie-Claire Cordonier Segger
AbstractAuthor's information

    Sustainable development is gradually integrated into policies worldwide, meanwhile, government authorities and policymakers, alongside public and private enterprises, are signaling the growing scope and scale of investment opportunities in this field. Capital cuts and decreasing generating costs are fueling the market in renewable technologies. At the same time, bilateral and multilateral treaties are being negotiated, which set the framework for expanding sustainable solutions: treaty regimes increasingly encourage and promote trade and investment for more sustainable energy development, responding to global concerns on climate change. Investment protection litigation offers new insights into trends in jurisprudence, demonstrating how this field of law can be instrumental not only for protecting undertakings’ interests, but holding countries to their commitments under international treaties for the protection of the environment.


Marie-Claire Cordonier Segger
Senior director, Centre for International Sustainable Development Law (CISDL); professor of law, University of Waterloo, Canada.
Article

The Case of the Hungarian Constitutional Court with Environmental Principles

From Non-Derogation to the Precautionary Approach

Keywords Constitutional Court of Hungary, environmental issues, non-derogation principle, precautionary principle, Article P of the Fundamental Law of Hungary, right to a healthy environment
Authors Gyula Bándi
AbstractAuthor's information

    Principles influence legislation, implementation and enforcement of the law to a great extent. This is especially the case with those fields of law, which are relatively new and subject to constant changes, such as environmental law. Principles have legal value, among others to fill legal gaps or to assist proper interpretation. It is always expedient to have a high-level judicial forum for legal interpretation at national level this would be a constitutional court or a supreme court. Legal interpretation can be particularly tricky when principles are combined with human rights. Constitutional courts, such as the Hungarian Constitutional Court are the preferred choice for such legal interpretation, since human rights are normally enshrined in the constitutions. In Hungary both the previous (1989) Constitution and the currently effective Fundamental Law of 2011 contain express and rather similar provisions regarding the right to environment, the content of which need clarification. Beside this similarity, the Fundamental Law has several other additional provisions supporting interpretation in the interests of the environment. This paper only presents – as examples of necessary interpretation – two principles to illustrate what the right to environment actually means. These are the non-regression (non-derogation) and the precautionary principles, which will be described both in general and in light of their current Hungarian interpretation. Non-regression (non-derogation) basically represents a decent minimum that should not be contravened, while precautionary principle is more in flux, a moving target, focusing on likely consequences, with scientific uncertainty at its core. Both principles will be introduced through the decisions of the Hungarian Constitutional Court.


Gyula Bándi
Jean Monnet professor of law, Pázmány Péter Catholic University, Budapest; Ombudsman for future generations.
Article

The Precautionary Principle in the Fundamental Law of Hungary

Judicial Activism or an Inherent Fundamental Principle? An Evaluation of Constitutional Court Decision No. 13/2018. (IX. 4.) AB on the Protection of Groundwater

Keywords Constitutional Court of Hungary, precautionary principle, judicial activism, Article P of the Fundamental Law of Hungary, constitutional protection of the environment
Authors Marcel Szabó
AbstractAuthor's information

    Acting upon the motion of the President of the Republic, the Constitutional Court of Hungary ruled in its Decision No. 13/2018. (IX. 4.) AB that the regulation which would have allowed establishing new wells up to the depth of 80m without a license or notification was contrary to the Fundamental Law. The Constitutional Court found in its decision that the regulation would endanger the volume and quality of underground water in a way that, considering the precautionary principle, was no longer compatible with the protection of natural resources and cultural artefacts forming the common heritage of the nation as laid down in Article P(1) of the Fundamental Law or Article XXI(1) of the same on the right to a healthy environment. It was in this decision that the Constitutional Court first outlined in detail the constitutional significance of the precautionary principle, with this principle forming the central part of the decision’s reasoning. Within the framework of this study I examine whether this decision based on the precautionary principle can be considered the ‘extraction’ of what is inherently present in the Fundamental Law or on the contrary, whether it was an activist approach imposing the principle on the Fundamental Law.


Marcel Szabó
Professor of law, Pázmány Péter Catholic University, Budapest; justice, Constitutional Court of Hungary.
Article

The Value of the Environment in Hungarian Municipalities

An Overview of the Legal Aspects

Keywords environmental regulation, environmental policy, local self-governments, local actions, environmental sustainability
Authors László Fodor
AbstractAuthor's information

    In the field of environmental policy, the principle of sustainability and local actions are becoming increasingly important (‘think globally – act locally’). In Hungary, the focus is – within the multi-level local government system – on the local governments of the municipalities. This study is part of a research project on the role of municipal local governments in Hungary. During our research, in addition to the research methods of the ‘desktop’, case studies, questionnaires, interviews and focus group interviews were used. This study presents such general conclusions that can be drawn from the partial results. It does not include the presentation of certain areas of local environmental protection (air protection, waste management, protecting the built environment etc.), it rather tries to present the attitude of local governments, their commitment to environmental protection and the circumstances affecting it. It shows that Hungarian local governments do not form a homogeneous group. Primarily due to the differing size of municipalities, local environmental conflicts and the financial resources available for their resolution differ from each other as well. However, certain circumstances – such as the low degree of environmental awareness of the Hungarian population, the decrease in the autonomy of the local governments, the effects of the economic crisis and the changes of central regulations – affect them equally. The environmental protection performance of local governments is generally lower than desired.


László Fodor
Professor of law, University of Debrecen.
Article

European Water Law and Uncertainty

Managing Hydrological Variability in Shared River Basins in the EU

Keywords hydrological variability, transboundary water governance, EU water law, shared river basins, variability management
Authors Gábor Baranyai
AbstractAuthor's information

    Hydrological variability has been on the rise in the past decades with dramatic consequences for water management on the national and international plane alike. Yet, most legal regimes governing the use and protection of water resources reflect a high degree of rigidity presuming that hydrological conditions prevailing at the time of their conception remain stable indefinitely. The mismatch between rigid legal frameworks and rapidly changing natural conditions are likely to give rise to new types of interstate conflicts in shared river basins (or accentuate existing ones), since historically the adoption of (new) transboundary governance regimes has been very slow and reactive in character. While the EU has been praised worldwide as an exemplary model of co-riparian cooperation, its multi-layered water governance regime also deserves a comprehensive fitness check that, among others, should evaluate its ability to handle the growing uncertainty surrounding underlying hydrological circumstances. This article provides a resilience assessment of European water law from the perspective of the management of hydrological variability.


Gábor Baranyai
Senior lecturer, National University of Public Service, Budapest.
Article

Defining the Role of the Aarhus Convention as Part of National, International and EU Law

Conclusions of a Case-Law Analysis

Keywords Aarhus Convention, principle of public participation, protection of the environment, environmental issues before national (constitutional) courts, direct applicability
Authors Ágnes Váradi
AbstractAuthor's information

    As a basic point of reference in international law the Aarhus Convention has a considerable impact on the framework of public participation in environmental matters. The fact that the Convention forms part of national legal orders of EU Member States both as part of international and EU law, the proper enforcement of its provisions makes it inevitable to draw up certain principles of interpretation. The current paper aims to analyze how the Aarhus Convention appears at the level of legal argumentation in the case-law of the CJEU and selected national constitutional courts or high courts of EU Member States, namely, Germany, France and Hungary. Those decisions are examined that refer directly and explicitly to the Aarhus Convention. The case-law analysis is completed by the reference to the relevant secondary literature. The findings can provide a synthesis about the role of the Aarhus Convention, thematic milestones can be drawn up concerning the interpretation of the obligations stemming from the Convention and they can give useful insights into the relationship of national laws, EU law and international law. Meanwhile, they contribute to the analysis of the role of civil participation in the protection of the environment. This way, the conclusions can support the emergence of a (more) general approach in EU Member States as far as public participation in environmental matters is concerned.


Ágnes Váradi
Research fellow, Hungarian Academy of Sciences, Centre for Social Sciences, Institute for Legal Studies.

    Géza Herczegh was a Hungarian academic, justice of the Hungarian Constitutional Court and judge of the International Court of Justice (ICJ). In this paper, which commemorates the 90th anniversary of Géza Herczegh’s birth, his successor at the ICJ, Judge Peter Tomka, offers his reflections on Herczegh’s time at the Court. While they had only limited interaction, Judge Tomka recalls his encounters with Herczegh, both before and after Herczegh’s election to the ICJ. Additionally, Judge Tomka reviews Herczegh’s legacy at the ICJ, considering both the occasions when Herczegh wrote separately from the Court and his reputation amongst people familiar with the ICJ as a dedicated and open-minded judge interested in finding areas of consensus.


Peter Tomka
Member of the ICJ since 6 February 2003 (re-elected as from 6 February 2012), Vice-President of the ICJ from 6 February 2009 until 5 February 2012; President of the ICJ from 6 February 2012 until 5 February 2015.
Article

Languages and Linguistic Issues before the International Criminal Court

Keywords linguistic issues, ICC, language of criminal procedure, local languages, use of own language
Authors Péter Kovács
AbstractAuthor's information

    The present article deals with some of the language issues present before the International Criminal Court (ICC). These issues do not simply result from the challenges of translation to/from English and French but also from the fact that the English and French used before the ICC are specialist legal languages with centuries-old practice behind their well-established notions (e.g. ‘no case to answer’). There are numerous other languages used by witnesses and victims with various backgrounds in the different cases and situations. They are mostly local, sometimes tribal languages often lacking the vocabulary necessary to describe complex legal issues, to deal with notions and phenomena of modern substantive or procedural law. It is equally important to note that there are always special local notions, which are impossible to translate with a single term, sometimes becoming a part of the English or French language of the procedure. Other languages, however, may bring with them their own special legal or historical-legal vocabulary, which must be reflected on in order to unpack its proper meaning. As such, language issues are omnipresent before the ICC, having also an impact on the budget of the Court. The efficient and accurate work of interpreters and translators is of outmost importance from the point of view of fair trial, rights of the accused but also from the perspective of access to information for victims, witnesses or local communities who are following the judicial procedure from home.


Péter Kovács
Professor of law, Pázmány Péter Catholic University, Budapest; judge at the International Criminal Court (2015-2024).
Article

The International Trading System and Market Distortions

Revisiting the Need for Competition Rules within the WTO

Keywords cross-border business activities, developing countries, multilateral competition rules, trade and competition, WTO
Authors Franziska Sucker
AbstractAuthor's information

    As a result of the interconnectedness of the global economy, cross-border activities of economic operators are soaring. Their business practices are not governed by multilateral rules, but merely, if at all, by regional or national laws. As a result, they are potentially subject to over- or under-enforcement and -regulation or to conflicting rules. The resultant legal uncertainties and, therefore, potential lack of discipline for practices facilitates the development of dominant positions and anticompetitive behavior. This advances market distortions to the detriment of diverse offerings and the competitiveness of small market players, especially in economically weak developed countries. Such unfavorable developments could be reduced by preventing market concentration and disciplining anticompetitive behavior. I argue that multilateral rules alone would ensure that cross-border activities of economic operators are subject to uniform rules, irrespective of which country’s or region’s market is affected; and thus, provide legal certainty for current gaps. Moreover, in spite of the resistance of numerous countries to include competition disciplines within the World Trade Organization (WTO), rules aimed at dismantling barriers to trade created by private economic operators are not only theoretically desirable but indispensable in the long term to avoid an erosion of the WTO system by effectively replacing state-created barriers. The increasing role of supply chains and the rising volatility of international commodity prices should give all, albeit particularly the economically weak developed countries, reason to pause and revisit an issue that has significant implications for the competitiveness of their economic operators.


Franziska Sucker
Associate professor, University of the Witwatersrand, Johannesburg.
Article

Certain Factors Influencing Compliance with International Humanitarian Law

Keywords implementation of international humanitarian law, compliance measures and mechanisms, enforcement of international humanitarian law, non-state actors, individual criminal responsibility
Authors Réka Varga
AbstractAuthor's information

    There are various mechanisms within and outside the sphere of international humanitarian law (IHL) which contribute to a better application, respect and enforcement of its rules. The present study takes stock of specific factors or mechanisms that may have an effect on better respect. This analysis attempts to demonstrate that even though states could not agree on the setting up of a permanent mechanism to meet regularly and discuss IHLrelated issues (the so-called Compliance process), there are certain instruments which could lead to similar result. The UN’s role with respect to IHL is examined. The International Criminal Court (ICC) is also briefly analyzed from this perspective, bearing in mind the international politics within which it has to function. The International Humanitarian Fact-Finding Commission (IHFFC) that has successfully completed its first mandate is a string of hope if more frequently used. Soft law documents are filling a void caused by the fatigue of states in adopting new rules, at the same time they start to have a similarly binding effect as legally binding obligations. All these factors become especially interesting if we understand that most conflicts today are fought with the involvement of non-state armed groups who are not involved in law-making. This reality gives training, both within state and non-state armed forces a special significance. States should also make efforts to undertake enquiries in cases of serious violations of IHL, as well as through exercising jurisdiction to repress violations, be they their own nationals or not.


Réka Varga
Associate professor, Pázmány Péter Catholic University, Budapest; Member of the International Humanitarian Fact-Finding Commission.
Article

To the Margin of the Theory of a New Type of Warfare

Examining Certain Aspects of Cyber Warfare

Keywords new types of security challenges, cyberspace, cyber warfare, cyber attack, cyber defense
Authors Ádám Farkas and Roland Kelemen
AbstractAuthor's information

    In the second half of the 20th century, humanity went through an unprecedented technical and technological development. As a result, technological innovations emerged in the course of the last third of the century which have now become indispensable parts of everyday life, the whole society and even the state. Among them, we must mention the IT sector, which has effectively enabled global contacts and communication between people and organizations across different parts of the world through various tools, programs and networks. Moreover, it also facilitates and simplifies everyday tasks both in the private and the public sector. Cyberspace is a unique and complex phenomenon, since it can be described with physical and geographical concepts, but in addition, its virtual features also have extraordinary relevance. As a result of its remarkable expansion, fundamental areas such as sociology, geopolitics, security policy or warfare must also be reconsidered. This paper provides an overview of the new types of security challenges for the 21st century, most notably security risks related to the cyberspace. In addition, some aspects of cyber warfare, such as cyber intelligence, cyber attack and cyber defense are examined. Particular attention is given to the question whether a cyber attack in itself can reach the level of an armed attack, and if so, what means can be used by the State under attack in defense.


Ádám Farkas
1st Lieutenant of the Hungarian Defence Forces; associate professor, National University of Public Service, Budapest.

Roland Kelemen
Assistant lecturer, Széchenyi István University, Győr; assistant research fellow, National University of Public Service, Budapest.
Article

E Pluribus Unum? Racial Injustice in the US and the International Response

Keywords UN human rights machinery, prohibition of discrimination, segregation in the US, racial discrimination, UN Human Rights Council
Authors Thamil Venthan Ananthavinavagan
AbstractAuthor's information

    The UN issued a scathing report in 2016 stating that “[I]n particular, the legacy of colonial history, enslavement, racial subordination and segregation, racial terrorism and racial inequality in the US remains a serious challenge.” After international slave trade, abolition of slavery, Jim Crow laws, civil rights struggle, ongoing systemic police brutality against African Americans and a prison machinery with a high prison rate with African Americans inmates the question remains: has racial discrimination ever ended in the US? The rising strength of a white supremacist movement poses another significant threat to the national cohesion of different communities in the US. Moreover, it reveals the dormant white nationalism that has awakened in light of policies and rhetoric animated and nourished by leading politicians in the country. To this end, this paper will investigate the following question: what is the impact of the colonial past on the US and how did the UN respond to this past? Finally, what will be the role of the UN to enhance the US human rights infrastructure for African Americans and ameliorate their situation in light of rising white supremacism?


Thamil Venthan Ananthavinavagan
Lecturer, Griffith College, Dublin.
Article

ECtHR Advisory Opinion and Response to Formal Requests Given by the Jurisconsult

Keywords ECtHR advisory opinion, Protocol No. 16 ECHR, Superior Courts Network, Article 47 ECHR, interaction between courts
Authors Tamás Tóth
AbstractAuthor's information

    The aim of this article is to present the role of the Superior Courts Network (SCN) launched by the ECtHR in preparation of national request for an advisory opinion issued by the ECtHR. The actuality of the topic is given by Protocol No. 16 of the ECHR that entered into force on 1 August 2018 and the issuance of the first advisory opinion published on 10 April 2019. Hungary has not acceded to Protocol No. 16, so this option is currently not available for the Hungarian courts. Actually, there is another way to assist the domestic courts in understanding the principles of the ECtHR’s case-law that are relevant to the case pending before them. This option is the so-called formal request for case-law information that could be submitted by a national court to the Directorate of Jurisconsult of the Registry of ECtHR with the help of SCN. Later, after acceding to Protocol No. 16, this channel of information could be helpful in preparation of request for advisory opinion.


Tamás Tóth
Chief counselor, Constitutional Court of Hungary; National Focal Point of the Superior Courts Network.
Article

The European Charter for Regional or Minority Languages

Specific Features and Problems of Application

Keywords European Charter for Regional or Minority Languages, protection of minority languages, protection of regional languages, supervisory regime
Authors Gábor Kardos
AbstractAuthor's information

    As was the case after the Great War, World War II was followed by the setting up of international legal regimes to protect national (national, ethnic, linguistic, and religious) minorities in Europe. The emerging ideas of universalism and European unity were to prevent the aftermath of World War I, a conflict which erupted as a result of Western focusing the system of European minority protection on Central and Eastern Europe. The European Charter for Regional or Minority Languages protects minority languages, without granting minority rights. It provides an á la Carte system of obligations, with a supervisory system hinged on government reports. The Charter was intended to be a ‘high politics’ treaty. Nevertheless, with the protection of the minority linguistic heritage and the indirect provision of minority linguistic rights, it meant a first step towards bringing an end to the 19th century processes linguistic homogenization of the budding nationstates. As such, its implementation is highly political. The minority languages protected by the Charter are strongly varied in nature. If we add this factor to the á la Carte system of obligations, the sheer complexity of the system prevents evaluations of the Committee of Experts from being as consistent as they should be. An important contribution of the soft supervisory mechanism is that it at least puts some problematic issues on the agenda, however, experience has shown that the transposition of treaty obligations into national law is always a simpler task than creating the substantive conditions for the actual use of minority languages.


Gábor Kardos
Professor of law, ELTE Law School, Budapest; Member of the Committee of Experts of the European Charter for Regional or Minority Languages.
Article

Snapshot of the EU Soft Law Research Landscape

Main Issues and Challenges

Keywords soft law, normativity, bindingness, directive-like recommendations, hybridity
Authors Petra Lea Láncos
AbstractAuthor's information

    Inspired by research into international soft law norms, the last two decades have seen an intensified investigation of the non-binding measures of the EU. With the proliferation of such norms at EU level, attempts at a taxonomy of EU soft law have been undertaken. The present paper tries to map the current status of EU soft law research, highlighting possible directions for future research.


Petra Lea Láncos
Researcher, Deutsches Forschungsinstitut für öffentliche Verwaltung, Speyer; associate professor, Pázmány Péter Catholic University, Budapest.
Article

From Kásler to Dunai

A Brief Overview of Recent Decisions of the CJEU in Hungarian Cases Concerning Unfair Terms in Consumer Contracts

Keywords preliminary ruling, consumer protection, unfair terms, Directive 93/13/EEC, consumer loan contract
Authors Miklós Zoltán Fehér
AbstractAuthor's information

    The CJEU was recently called upon to interpret Council Directive 93/13/EEC on unfair terms in consumer contracts in relation to consumer loan contracts denominated in a foreign currency and in relation to the legislation adopted by the Hungarian Parliament in 2014 concerning such contracts in several Hungarian preliminary ruling procedures. The decisions of the CJEU, starting with the judgment rendered in case C-26/13, Kásler and Káslerné Rábai, have not only contributed to the ever-evolving case-law relating to Directive 93/13/EEC but also provided national jurisdictions with useful guidance on the interpretation and application of the Directive in the specific area of consumer loan contracts concluded in a foreign currency, an area of prolific litigation before Hungarian courts in recent years. The CJEU also evaluated the Hungarian legislation adopted in 2014 to deal with certain issues relating to such contracts and seemed to approve of its conformity with Directive 93/13/EEC in a series of decisions up until the judgment made in case C-117/18, Dunai. In that judgment, however, the findings of the CJEU may have been based on a misinterpretation of the content of national legislation, leading to a perhaps erroneous conclusion and most certainly prompting a re-emergence of controversies before national courts.


Miklós Zoltán Fehér
Head of Department at the Hungarian Ministry of Justice, Agent of the Hungarian Government before the CJEU.
Article

Legal Challenges of the Retention of Worker Status as Reflected in Recent Case-Law of the CJEU

Keywords free movement of workers, EU citizens, right to move and reside freely, retention of EU worker status, equal treatment, welfare benefits
Authors Laura Gyeney
AbstractAuthor's information

    In recent years, a growing number of cases related to the retention of worker status have emerged in CJEU jurisprudence with reference to welfare benefits, requiring a much deeper analysis of the field treated earlier as peripheral. Such an analysis seems especially justified in light of the current political and legal discourse concerning the issue of free movement, focusing on the question of equal treatment in the field of welfare assistance for mobile citizens. The purpose of this study is to present and put into context the relevant case-law of recent years by analyzing the judgments of the CJEU in two cases that are benchmarks in this field: the Tarola and Saint Prix cases. Both cases highlight the key role that economically active status continues to play in integration law. These judgments also shed light on the challenges arising from the difficulties in distinguishing between the economically active and inactive EU citizen statuses. This issue emerged as an increasingly grave problem in the field of law of free movement, posing a serious dilemma for law enforcement.


Laura Gyeney
Associate professor, Pázmány Péter Catholic University, Budapest.
Article

The European Investment Bank

An EU Institution Facing Challenges and Providing Real European Added Value

Keywords European Investment Bank, status and role of development banks, Green Bonds, European Fund for Strategic Investments (EFSI), InvestEU
Authors Zsolt Halász
AbstractAuthor's information

    Multilateral banks play an important role in financing larger investment projects within the EU and in most parts of the world. These institutions are less known than that commercial banks, even though many of these institutions – and in particular, the European Investment Bank – have provided a truly remarkable volume of financial support for the countries where they operate, including EU Member States. This paper introduces the largest of the multilateral financial institutions: the European Investment Bank. It elaborates on the specific regulatory framework applicable to its structure and operation as well as a number of special characteristics affecting this institution exhibiting a unique dual nature: a multilateral bank and an EU institution. This paper examines the complexity of the EIB’s operation, in particular, the impact of external circumstances such as EU enlargements of the past and the Brexit issue in the present. Beyond these specific questions, generic issues relating to its operations, governance, the applicable specific prudential requirements and the non-supervised nature of multilateral financial institutions are analyzed as well. This paper also reflects on the EIB’s unimpeachable role in financing the EU economy and on its pioneering role in bringing non-financial considerations, such as environmental protection into the implementation of financial operations.


Zsolt Halász
Associate professor, Pázmány Péter Catholic University, Budapest.
Article

Towards a Conceptualization of the Notion of Solidarity in the Legal Framework of the EU

Keywords Concept of solidarity, principle of solidarity in EU law, theory of EU law, solidarity as a value concept
Authors András Pünkösty
AbstractAuthor's information

    This article carries out an in-depth analysis of the complex meaning of solidarity within the EU legal framework. Solidarity is a multi-layered concept that serving as the basis for different policy-making choices of highly variable material substance, contributing significantly to the judgments of the CJEU. The point of departure in the analysis are references made to the notion of solidarity in the Founding Treaties. An important layer of its meaning derives from solidarity considered as a ‘value’. Important references are made to solidarity as a ‘principle’ or ‘spirit’ and there are additional layers of its meaning in the Treaties. In secondary legislation and the institutions’ communications, solidarity serves mainly as a basis for socially orientated policymaking. Following the analysis of the meaning of solidarity, I consider the notion of ‘solidarity acquis’ elaborated by Malcolm Ross that suggests that solidarity is one of the most effective tools in maintaining the consistency of the EU legal framework. Finally, the paper focuses on the case-law of the CJEU to conceptualize core legal implications of solidarity in order to establish whether solidarity may be recognized as a general principle of EU law.


András Pünkösty
Senior lecturer, Pázmány Péter Catholic University, Budapest.
Article

Key Factors of the Development and Renewal of the Social Market Economy in the EU

Keywords Europe 2020 strategy, social market economy, eco-social market economy, social welfare systems, EU structural funds
Authors István Kőrösi
AbstractAuthor's information

    The purpose of this study is to present the principles, strategy and operation of the social market economy, based on legal, political and economic considerations. The first social market economy, West Germany – followed by Austria, the Netherlands, as well as other countries in Northern and Western Europe –, mustered a positive overall performance from the post-World War II years to the early 1970s. Since then, however, we have been witnessing the erosion, distortion and decline of efficiency of the social market economy. There are four main issues to be addressed: (i) What are the main theoretical and conceptual, ‘eternal’ elements of the social market economy? (ii) What economic policy was built on this theoretical foundation and why did the system work well in Western Europe after World War II? (iii) What factors eroded this system? (iv) Can social market economy be renewed in the second decade of the 21st century and, if it can, what are the preconditions of it? In my analysis, I highlight some key areas: EU policies, Lisbon Agenda and Europe 2020 strategy, growth, financial disequilibria and competitiveness, innovation and employment, the relation of state and market.


István Kőrösi
Associate professor, Pázmány Péter Catholic University, Budapest; senior research fellow, World Economic Institute of ERRC of the Hungarian Academy of Sciences.
Article

In Unchartered Waters?

The Place and Position of EU Law and the Charter of Fundamental Rights in the Jurisprudence of the Constitutional Court of Hungary

Keywords Constitutional Court of Hungary, Charter of Fundamental Rights, preliminary ruling procedure, constitutional dialogue, CILFIT criteria
Authors Márton Sulyok and Lilla Nóra Kiss
AbstractAuthor's information

    This paper examines the perception and position of EU law in the jurisprudence of the Constitutional Court of Hungary within the constitutional arrangements brought to life after 2012. In this context, the inquiry addresses the changes regarding the status of EU law in constitutional case-law amounting to what is identified here as the method of ‘resourceful engagement’. Under this approach, the paper also examines the extent and frequency of the use of human rights reasoning based on the Charter of Fundamental Rights of the EU in the proceedings of the Constitutional Court (2015-2019), focusing mostly on constitutional complaints procedures. The paper briefly mentions the controversial nature of the ‘Implementation Dilemma’ regarding the Charter and its application in Member States’ constitutional court proceedings. As a corollary, in light of domestic procedures examined in the Repcevirág Szövetkezet v. Hungary judgment (April 2019) of the ECtHR, it examines whether the Constitutional Court could eventually start acting as a court of referral under Article 267 TFEU in such proceedings where the protection of fundamental rights under the Charter would require the interpretation of EU law. This would mark a shift from the earlier ‘context of non-reference’ to an approach of ‘resourceful engagement’ suggested by this paper.


Márton Sulyok
Senior lecturer, University of Szeged.

Lilla Nóra Kiss
Junior research fellow, University of Miskolc.
Article

Fair Trial under Scrutiny

Keywords Constitutional Court of Hungary, right to a fair trial, Article 6 ECHR, Article XXVIII of the Fundamental Law of Hungary, Hungarian Code of Criminal Procedure
Authors Ágnes Czine
AbstractAuthor's information

    The right to a fair trial has an eminent position in the Fundamental Law of Hungary both because of the importance of the right and the great number of applications and jurisprudence it has been the subject of. This study presents the legal background of fair trial and its place in the Hungarian legal system, analyzing the jurisprudence of the Hungarian Constitutional Court on the right to fair trial, and in particular, the obligation to adjudicate within a reasonable time. While the Constitutional Court has developed a consistent practice in this regard, there are nevertheless new issues that may make the amendment of certain pieces of legislation necessary. This paper presents a case-study on a new development in the Constitutional Court’s practice on the issue of deciding the case within a reasonable time.


Ágnes Czine
Justice, Constitutional Court of Hungary.
Article

Content Neutrality and the Limitation of Free Speech

The Relevance of an American Principle in the Case-Law of the Constitutional Court of Hungary

Keywords Constitutional Court of Hungary, limitation of free speech, freedom of expression, content neutrality, external boundary
Authors Bernát Török
AbstractAuthor's information

    Content neutrality is arguably the most frequently mentioned principle of free speech doctrine both in legal theory and in legal practice. While it is well-known how important it is in the jurisprudence of the US, it generally remains obscure whether content neutrality is of true relevance for European jurisdictions. This article argues that the Hungarian doctrine of freedom of expression urges us to answer affirmatively. The case-law of the Hungarian Constitutional Court from the last three decades clearly demonstrates that although along with serious challenges to be responded to, content neutrality is a fundamental element of constitutional adjudication in the Hungarian doctrine. With its key concept of ‘external boundaries of free speech’, the Constitutional Court builds on the principle that restrictions should not be based on the fact that the content of speech is unacceptable, unworthy or wrong, and limitation on speech should be justified not by referring to its content alone but by referring to its context. After exploring the relevant case-law of the Constitutional Court and identifying the challenges this principle is facing in Hungarian doctrine, this article aims to construe valid theses of content neutrality in Hungarian law.


Bernát Török
Associate professor, National University of Public Service, Budapest.
Article

“Land of Confusion”

Social (Fundamental) Rights and the Provisions of the Fundamental Law in Light of the Practice of the Constitutional Court of Hungary

Keywords Constitutional Court of Hungary, social rights as fundamental rights, right to social security, state goals, social security system of Hungary
Authors István Hoffman
AbstractAuthor's information

    Modern welfare democracies developed different approaches to social rights. This paper briefly reviews the different models for the institutionalization of social rights as fundamental rights in modern democracies. In Hungary, the approach to social security has been significantly transformed by the Fundamental Law. For this reason, the paper reviews the approach of the Hungarian constitutional system to the right to social security between 1989 and 2011 and introduces the current position of social rights in the Hungarian legal system. This is done through and assessment of the provisions of the Fundamental Law and the current case-law of the Constitutional Court of Hungary.


István Hoffman
Professor of law, ELTE Law School, Budapest.
Article

A Multipolar System for the Protection of Fundamental Rights in Practice

Unjustified Dismissals of Government Officials in Hungary

Keywords Constitutional Court of Hungary, Multilevel constitutionalism, right to an effective remedy, unjustified dismissal of government officials, European protection of fundamental rights
Authors Zsuzsanna Szabó
AbstractAuthor's information

    Today, within the European multi-level and cooperative constitutional area the ECHR, the constitutional values enshrined in the EU Treaties together with the EU Charter of Fundamental Rights, as well as the constitutions of the EU Member States function as parallel constitutions. The legal remedies offered by international forums are subsidiary by nature, since it is desirable that legal issues of human rights be solved by the states at national level. The obligation to exhaust domestic legal remedies as a procedural precondition is necessary to afford the national level the opportunity to remedy the violation of human rights within its own legal system. This paper focuses on Section 8(1) of Act LVIII of 2010 on the legal status of government officials, which states that the employer has the right to terminate the contract of government officials with a two months’ notice period without justification. This research is of considerable interest because the dismissed officials – who, in my opinion, de facto suffered injury for the violation of their human rights – were forced to turn to international fora due to the fact that the Hungarian legal system was unable to grant them proper relief. Therefore, the analysis also evaluates the current level of fundamental rights adjudication and jurisprudence related to fundamental principles in Hungary.


Zsuzsanna Szabó
Assistant lecturer, University of Debrecen.
Article

The New Hungarian Private International Law Code

Something Old and Something New

Keywords private international law, codification, general part of the New Hungarian Private International Law Code, legal institutions in the New Hungarian Private International Law Code, EU private international law regulations
Authors Katalin Raffai
AbstractAuthor's information

    Since the adoption of Law Decree No. 13 of 1979 on Private International Law (Old Code) both the legal environment of the EU and the Hungarian legal and social background have undergone substantial changes. Without questioning its progressive character, it must be stated that the Old Code wore the imprints of the era in which it was drafted. With the fall of the socialist system, the necessary amendments were made to the system of the Old Code, accelerated by Hungary’s accession to the EU. All the above played an important role in the Government’s order to begin work on the comprehensive modernization of the Old Code. The Act XXVIII of 2017 on Private International Law (New Code) entered into force on 1 January 2018. The present study focuses on the following topics: the reasons for the revision of the Old Code, the presentation of the relationship between the New Code and EU regulations in the system of legal instruments, and the review of legal institutions in the general part, with special attention to the major changes undertaken compared to the Old Code.


Katalin Raffai
Associate professor, Pázmány Péter Catholic University, Budapest; member of the Private International Law Codification Committee.
Article

The Rights of the Victim in Hungarian Criminal Proceedings

Keywords rights of victims, code of criminal procedure in Hungary, victims in criminal procedure, Directive 2012/29/EU, rights of vulnerable persons
Authors Anna Kiss
AbstractAuthor's information

    In the course of the development of criminal law victims lost their former leading role in the procedure and were pushed to the periphery of justice. Legal experts have come to realize that this tendency is tremendously unfair to the victim. European documents on the legal position of the victims increasingly called the attention of the legislature to the need of bringing about changes. In Hungary, the relevant new law was passed in June 2017. The Code came into effect in July 2018 and confirmed the victim’s procedural position. Since July, there are three groups of victims’ rights in Hungarian Criminal Proceedings: provision of information and support; participation in criminal proceedings; protection of victims and recognition of victims in need of special protection. In addition to describing the rights, the study also draws attention to the fact in light of the principle that all rights are worth upholding it is not enough to regulate the rights of victims. The study also warns that although the rights of victims are important, we should not forget the guarantees concerning suspects’ rights, which must also be ensured.


Anna Kiss
Senior research fellow, National Institute of Criminology, Budapest.
Article

Fiscal Equalization among the Hungarian Local Governments – Autonomy v. Equity

Decision No. 3383/2018. (XII. 14.) AB of the Constitutional Court of Hungary

Keywords European Charter of Local Self-Government, financial resources of local authorities, fiscal equalization, solidarity levy, Constitutional Court of Hungary
Authors Gábor Kecső
AbstractAuthor's information

    The 2017 budget of Hungary contains a regime on fiscal equalization among local governments that distracts funds from the municipalities with relatively high taxing power within the country. The respective norms were reviewed by the Constitutional Court from the perspective of international law, since Hungary is one of the member parties to the European Charter of Local Self-Government. This note highlights the essence of the abovementioned decision and discusses some underlying issues of allocating public tasks and funds between the governmental layers in a unitary country where the per capita revenue of local taxes is very divergent.


Gábor Kecső
Senior lecturer, ELTE Law School, Budapest; counselor, Constitutional Court of Hungary.
Article

Magyar Jeti Zrt. v. Hungary

Judgment of the ECtHR Concerning the Imposition of Liability for Posting Hyperlinks to Defamatory Content

Keywords freedom of expression, defamatory content, liability of online press, Article 10 ECHR, hyperlinks
Authors Renáta Gyalog
AbstractAuthor's information

    The article aims to introduce the judgment of the ECtHR on the case Magyar Jeti Zrt. v. Hungary. Although in this Hungarian case the ECtHR dealt with a special provision of the Hungarian Civil Code that – under the interpretation of the domestic courts – imposes objective liability for posting hyperlinks which lead to third-party online content, the judgment can be considered as a big improvement compared to the previous decisions of the ECtHR concerning the freedom of expression. The judgment offers legal certainty and guidance for journalists who post hyperlinks by determining five relevant questions to be taken into account when deciding whether the liability of a press organ can be established for contents cited from other websites over which they have no control. Becoming the best ECtHR judgment of the year 2018 under the yearly vote announced by Strasbourg Observers blog portal also emphasizes the importance and the relevance of this decision for the digital media.


Renáta Gyalog
Assistant judge, Békéscsaba District Court, Hungary.
Article

EUdentity – European Conference on Constitutional Identity

Report on the ‘Constitutional EUdentity 2019’ Conference Organized by the Constitutional Court of Hungary, 8 March 2019, Budapest

Authors Attila Szabó
Author's information

Attila Szabó
Chef de cabinet, Constitutional Court of Hungary.
Article

Conference on the Evaluation of Legislation

Report on the ‘Evaluation of Legislation’ Conference Organized by Pázmány Péter Catholic University, 3 May 2019, Budapest

Authors Noémi Suri
Author's information

Noémi Suri
Assistant professor, Pázmány Péter Catholic University, Budapest.
Article

From International Law in Books to International Law in Action

ELTE Law School’s Jessup and Telders Victories in 2019

Authors Gábor Katjár and Katalin Sulyok
Author's information

Gábor Katjár
Associate professor, ELTE Law School, Budapest, and coach of ELTE Jessup Team since 2010 as well as coach of ELTE Telders Team since 2016.

Katalin Sulyok
Senior lecturer, ELTE Law School, Budapest, and co-coach of ELTE Jessup Team in 2015, 2017 and 2019; co-coach of ELTE Telders Team in 2019.

Zénó Suller
PhD student, Pázmány Péter Catholic University, Budapest.

István Harkai
Assistant lecturer, University of Szeged.

Tamás Szabados
Senior lecturer, ELTE Law School, Budapest.

Petra Lea Láncos
Researcher, Deutsches Forschungsinstitut für öffentliche Verwaltung, Speyer; associate professor, Pázmány Péter Catholic University, Budapest.

Tamás Török
PhD candidate, University of Pécs.